The U.S. Supreme Court's ruling this summer on Arizona's SB 1070 immigration law held the attention of a nation watching to see how far states would be allowed to go in writing its own immigration laws. But the Court hears at least a handful of immigration cases each term, and each one has the potential to shape the legal landscape for the long term. Recognizing that most immigration cases before the Court fly below the radar, crImmigration.com holds an annual online symposium and invites immigration experts to share their insight on cases before the court that term. The 2012 symposium launched today with a post by Heartland Alliance's National Immigrant Justice Center' (NIJC) Associate Director of Litigation Claudia Valenzuela and Baker & McKenzie Equal Justice Works Fellow Sarah Rose Weinman discussing Moncrieffe v. Holder, which will be argued tomorrow and for which NIJC submitted a friend of the court brief.

This Wednesday, October 10, the U.S. Supreme Court will hear oral arguments in Moncrieffe v. Holder, an immigration case arising out of the Fifth Circuit Court of Appeals. Moncrieffe presents yet another challenge by an immigrant to the charge that his conviction constitutes an “aggravated felony” in the immigration context—a determination that generally results in permanent banishment from the United States.

In Moncrieffe, a lawful permanent resident was convicted of a state offense that criminalized selling or transferring marijuana, and received a sentence of probation. Under federal law, a drug trafficking offense is considered an aggravated felony, yet a misdemeanor exception exists for transferring a small amount of marijuana for no remuneration. The state statute under which Moncrieffe was convicted criminalizes both conduct that would constitute an aggravated felony (sale of marijuana) and conduct that would not(transferring a small amount of marijuana for no remuneration), and the record of conviction did not show that Moncrieffe’s conduct would bring it within the ambit of misdemeanor exception.

The Fifth Circuit held that where a state statute covers both aggravated felony and marijuana misdemeanor conduct and where the record of conviction is unclear as to what type of conduct was involved, the offense presumptively should be considered an aggravated felony. In so holding, the court of appeals effectively set aside the longstanding categorical/modified categorical approach to determining if an offense is an aggravated felony. Typically, if the record of conviction does not definitively show that the conduct involved constitutes an aggravated felony, then the government cannot meets its burden of proving that a lawfully admitted immigrant is removable as an aggravated felon. Yet, the rule adopted by the Fifth Circuit (and by the Board of Immigration Appeals) does away with this approach: where the record of conviction does not clearly prove an aggravated felony, the Fifth Circuit’s rule would require that an immigrant disprove his own removability by essentially re-litigating his criminal case in removal proceedings and gathering evidence (possibly from a decades-old offense) to show that his state marijuana conviction is not an aggravated felony.

As amici, the NIJC and fellow organizations that provide direct legal services to detained immigrants support the Petitioner’s position urging the Court to reject the Fifth Circuit’s rule and to uphold the traditional categorical/modified categorical approach. The amicus brief sheds light on the practical difficulties that the Fifth Circuit’s position would raise.

Immigrants face extraordinary barriers in litigating their own removal proceedings. There is no right to appointed counsel for indigent individuals in immigration proceedings, so a majority of immigrants (many of whom do not speak English and have limited education) appear pro se. Defending against removal can be procedurally and substantively complicated even for experienced attorneys. Further, if an immigrant faces removal for even a minor drug-related offense, he is subject to mandatory detention. There is no possibility for bond, even if the individual is not a flight risk or a danger to the community, and even if he may have a defense to his deportation. Being detained makes it difficult for immigrants to defend against their removal, particularly if they are pro se. Immigrants in detention often are held in remote facilities, are transferred between facilities frequently and without notice, and have irregular access to phones; this detention context makes it difficult if not impossible to contact family, friends, courts, former public defenders, or anyone else who might help them gather documents or other evidence they would need to mount a defense to deportation.

In addition to the serious fairness concerns that would arise by requiring a legal permanent resident or other lawfully admitted immigrant to disprove his own removability, any such rulewould cause massive delays and inefficiencies in an already backlogged immigration court system. The system prioritizes rapid adjudication of cases, particularly for detained noncitizens, and immigration judges face pressure to resolve their overcrowded dockets quickly but fairly. Yet, the practical difficulties that would arise by requiring detained, pro se immigrants to collect old records showing that an offense involved only a small amount of marijuana and that they did not receive any money in transferring it would require judges to make an untenable choice: either grant a series of continuances to permit immigrants time to gather evidence in their defense, thus adding to docket backlogs, or deny requests for continuances and risk permanently exiling someone who may well not be removable under the law but simply can’t prove it in time.

Amici’s goal in presenting a picture to the Court of the procedural hurdles facing detained immigrants in removal proceedings was to show why the strict application of the categorical rule is warranted by the need to make removal proceedings fair, uniform, and efficient.